EXHIBIT 10-Ad
EMPLOYMENT AGREEMENT
THIS AGREEMENT is by and between Zila, Inc., a Delaware corporation (the
"Company"), and Xxxxxxx X. Xxxxxxx, Ph.D. (the "Executive"), effective as of
July 24, 2002 (the "Effective Date").
BACKGROUND
The Board of Directors of the Company (the "Board") has determined that it
is in the best interests of the Company and its shareholders to assure that the
Company will have the continued employment and dedication of the Executive.
The Board has further determined that it is desirable to provide the
Executive with compensation and benefits terms which adequately compensate the
Executive for the services he renders to the Company, and, to ensure that such
compensation and benefits are consistent with those of like executives of other
public companies.
AGREEMENT
Now, therefore, it is hereby agreed as follows:
1. EMPLOYMENT PERIOD. The Company hereby agrees to continue the Executive
in its employ, and the Executive hereby agrees to remain in the employ of the
Company subject to the terms and conditions of this Agreement, for the period
commencing on the Effective Date and ending on January 23, 2004, or such later
date as provided in this Section 1 (the "Employment Period"). This Agreement
shall be automatically renewed, under the same terms and conditions, for
continuous successive six-month terms unless terminated prior to or on the last
day of the Employment Period by (i) the Company for Cause (as defined in Section
3.2 below), (ii) the Executive for Good Reason (as defined in Section 3.3 below)
or (iii) the Company or the Executive upon thirty (30) days written notice given
by one party to the other party for any other reason except Death or Disability.
2. TERMS OF EMPLOYMENT.
2.1 Position and Duties.
2.1.1 Position. During the Employment Period, the Executive
shall be employed in an executive capacity in the position of President and
Chief Executive Officer of the Company at its headquarters in Phoenix, Arizona.
2.1.2 Duties.
2.1.2.1 During the Employment Period, and excluding any
periods of vacation and sick leave to which the Executive is entitled, the
Executive will devote his full attention and time to the business and
affairs of the Company as its President and Chief Executive Officer. The
Executive will supervise the business and affairs of the Company and the
performance by all of its other officers of their respective duties,
subject to the control of the Board. The Executive will report to the
Board. The Executive will use his best efforts to perform faithfully and
efficiently such duties and responsibilities.
2.1.2.2 While employed hereunder, the Executive agrees
to devote all of his business time, attention, skill and efforts to the
faithful and efficient performance of his duties under this Agreement;
provided, however, that the Executive may engage in the following
activities so long as they are approved in advance by the Board and do not
interfere in any material respect with the performance of Executive's
duties and responsibilities hereunder: (i) serve on corporate, civic or
charitable boards or committees and (ii) deliver lectures, fulfill
speaking engagements or teach on a part-time basis at educational
institutions.
2.2 Compensation.
2.2.1 Base Salary. The Executive shall receive an initial
annual base salary ("Initial Base Salary") of Two Hundred Fifty Thousand Dollars
($250,000). Thereafter, the Executive's salary and total compensation shall be
reviewed on a periodic basis by the Board or the Compensation Committee of the
Board (the "Committee") to determine what, if any, increases shall be made
thereto; provided, however, that Executive shall receive automatic increases
equivalent to any increase in the Cost of Living Index prepared by the United
States Department of Labor. The base salary payable to the Executive in any
given year, including the Initial Base Salary, is hereafter referred to as the
"Annual Base Salary." Any increase in Annual Base Salary shall not serve to
limit or reduce any other obligation to the Executive under this Agreement. The
Annual Base Salary shall not be reduced after any increase and the term Annual
Base Salary as utilized in this Agreement shall refer to Annual Base Salary as
increased. The Annual Base Salary shall in all instances be payable in
twenty-six (26) equal bi-weekly installments.
2.2.2 Bonus. The Company shall pay the Executive a bonus of
thirty-five thousand dollars ($35,000) on the Effective Date.
2.2.3 Annual Bonus and Option Plans. In addition to the Annual
Base Salary, the Executive shall be eligible for a performance bonus of up to
thirty-five percent (35%) of Executive's Annual Base Salary, to be determined by
the Board or the Committee within one-hundred twenty (120) days after the end of
the Company's fiscal year. The Executive shall also be eligible to participate
in any applicable Company bonus plan or program or stock option plan or program
in effect immediately prior to the Effective Date, or put into effect by the
Board at any time after the Effective Date. The Company shall issue the
Executive options to purchase (i) 200,000 shares of its Common Stock on the
Effective Date, which options will be exercisable at a price equal to $ .76 per
share, the average of the closing bid and ask prices of the Common Stock on the
Effective Date; and (ii) 100,000 shares of its Common Stock on the first
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anniversary of the Effective Date, which options will be exercisable at a price
equal to the closing price of the Common Stock on such date. The options issued
under this Section 2.2.3 shall have a ten-year term from the date of their
issue, shall be incentive stock options to the extent allowable under the
Internal Revenue Code and non-qualified options as to the balance, and shall
vest one-third upon grant and the balance in two equal annual installments from
their dates of grant.
2.2.4 Incentive, Savings and Retirement Plans. During the
Employment Period, the Executive shall be entitled to participate in all
incentive, savings and retirement plans, practices, policies and programs
applicable generally to other executives of the Company, as the same may be
amended from time to time, but in no event shall such plans, practices, policies
and programs provide the Executive with incentive opportunities, savings
opportunities and retirement benefit opportunities, in each case, less
favorable, in the aggregate, than the most favorable of those provided by the
Company to other executives of the Company; provided, however, the dollar value
awarded Executive in the reasonable discretion of management need not be equal
to that awarded to all other executives. The Company shall also purchase for the
Executive a $500,000 term life insurance policy and a long-term disability
insurance policy with a benefit equal to one half of the Executive's Annual Base
Salary at the point of the disability.
2.2.5 Welfare Benefit Plans. During the Employment Period, the
Executive and/or the Executive's family, as the case may be, shall be eligible
for participation in and shall receive all benefits under welfare benefit plans,
practices, policies and programs provided by the Company (including, without
limitation, medical, prescription, dental, disability, salary continuance,
employee life, group life, accidental death and travel accident insurance plans
and programs) to the extent applicable generally to other executives of the
Company, but in no event shall such plans, practices, policies and programs
provide the Executive with benefits which are less favorable, in the aggregate,
than the most favorable of such plans, practices, policies and programs provided
generally at any time after the Effective Date to other executives of the
Company.
2.2.6 Expenses. During the Employment Period, the Executive
shall be entitled to receive prompt reimbursement for all reasonable expenses
incurred by the Executive in the conduct of Company business.
2.2.7 Vacation. During the Employment Period, the Executive
shall be entitled to paid vacation of four weeks annually and otherwise be in
accordance with the plans, policies, programs and practices of the Company in
all respects as in effect for the Executive during the one hundred twenty (120)
day period immediately preceding the Effective Date or, if more favorable to the
Executive, as in effect generally at any time after the Effective Date with
respect to other executives of the Company.
2.2.8 Automobile Allowance. The Company shall also pay the
Executive an automobile allowance of $950 per month, or as otherwise increased
by the Board or Committee.
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2.2.9 Financial, Estate and Tax Planning. The Company will pay
the expenses relating to estate and tax planning and tax return preparation for
the Executive not to exceed $5,000 per year.
2.2.10 No Director Fees. In no event shall the Executive be
entitled to receive any additional compensation for serving as a director,
member and/or manager of the Company or any affiliate of the Company.
3. TERMINATION OF EMPLOYMENT.
3.1 Death or Disability. The Executive's employment shall terminate
automatically upon the Executive's death during the Employment Period. If the
Company determines in good faith that any Disability of the Executive has
occurred during the Employment Period (pursuant to the definition of Disability
set forth below), it may give to the Executive written notice in accordance with
Section 10.2, of its intention to terminate the Executive's employment. In such
event, the Executive's employment with the Company shall terminate effective on
the thirtieth (30th) day after receipt of such notice by the Executive (the
"Disability Effective Date"), provided that, within the thirty (30) days after
such receipt, the Executive shall not have returned to full-time performance of
the Executive's duties. For purposes of this Agreement, the term "Disability"
shall mean the absence of the Executive from the Executive's duties with the
Company on a full-time basis for one hundred eighty (180) consecutive business
days as a result of incapacity due to mental or physical illness certified by a
physician selected by the Company or its insurers and acceptable to the
Executive or the Executive's legal representative.
3.2 Cause. The Company may terminate the Executive's employment
during the Employment Period for Cause. For purposes of this Agreement, the term
"Cause" shall mean: (i) the willful and continued failure of the Executive to
perform substantially the Executive's duties with the Company as set forth in
Section 2.1.2, "Duties," (other than any such failure resulting from incapacity
due to physical or mental illness), after a written demand for substantial
performance is delivered to the Executive by the Board, accompanied by a
resolution adopted by the vote of two-thirds (2/3) of the entire Board,
excluding the Executive, at a meeting of the Board held for such purpose, which
resolution specifically identifies the manner in which the Board believes that
the Executive has not substantially performed the Executive's duties and
Executive has not cured any such failure to perform within ten (10) business
days of such demand; (ii) material violation of any of the Company's policies;
(iii) breach by the Executive of his obligations under this Agreement; or (iv)
if the Executive is charged with illegal conduct by a governmental body or
regulatory authority, or has engaged in gross misconduct that is materially
injurious to the Company as determined by a resolution adopted by the vote of
three-fourths (3/4) of the entire Board, excluding the Executive, at a meeting
of the Board held for such purpose, which resolution specifically identifies the
alleged illegal conduct or gross misconduct. For purposes of this provision, no
act or failure to act, on the part of the Executive, shall be considered
"willful" unless it is done, or omitted to be done, by the Executive in bad
faith. The vote of the Board on the resolutions contemplated in (i) and (iv) of
this Section 3.2 will not be taken until after written notice of not less than
five (5) business days to the Executive of the meeting and an opportunity for
Executive to be heard before the Board at such meeting.
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3.3 Good Reason. The Executive may terminate his employment for Good
Reason at any time within ninety (90) days after the Executive first has actual
knowledge of the occurrence of such Good Reason. For purposes of this Agreement,
the term "Good Reason" shall mean:
3.3.1 the assignment to the Executive of any duties that are
not consistent with the duties set forth in Section 2.1.2, "Duties," or any
other action by the Company that results in a material diminution in the
Executive's position, authority, duties or responsibilities, excluding for this
purpose an isolated, insubstantial and inadvertent action not taken in bad faith
and which is remedied by the Company promptly after receipt of notice thereof
given by the Executive;
3.3.2 any failure by the Company to comply with any of the
provisions of Section 2.2, "Compensation," other than an isolated, insubstantial
and inadvertent failure not occurring in bad faith and which is remedied by the
Company promptly after receipt of notice thereof given by the Executive;
3.3.3 the Company's requiring the Executive, without the
Executive's consent and full agreement, to be based at any office other than in
Phoenix, Arizona or a position other than as provided in Section 2.1.1;
3.3.4 any purported termination by the Company of the
Executive's employment otherwise than as expressly permitted by this Agreement;
3.3.5 any written notice given by the Company to the Executive
under Section 1, "Employment Period, " that it will not renew the Agreement; or
3.3.6 any failure by the Company to comply with and satisfy
Section 9.3.
3.4 Notice of Termination. Any termination by the Company for Cause,
or by the Executive for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 10.2 of
this Agreement. For purposes of this Agreement, the term "Notice of Termination"
means a written notice that:
3.4.1 indicates the specific termination provision in this
Agreement relied upon;
3.4.2 to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Executive's employment under the provision so indicated; and
3.4.3 if the Date of Termination (as defined below) is other
than the date of receipt of such notice, specifies the termination date, which
date shall be not more than thirty (30) days after the giving of such notice.
The failure by the Executive or the Company to set forth in the Notice of
Termination any fact or circumstance which contributes to a showing of Good
Reason or Cause shall not waive any right of the Executive or the Company,
respectively,
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hereunder or preclude the Executive or the Company, respectively, from asserting
such fact or circumstance in enforcing the rights of the Executive or the
Company under this Agreement.
3.5 Date of Termination. The term "Date of Termination" means:
3.5.1 if the Executive's employment is terminated by the
Company for Cause, or by the Executive for Good Reason, the date of receipt of
the Notice of Termination or any later date specified therein, as the case may
be;
3.5.2 if the Executive's employment is terminated by the
Company other than for Cause or Disability, the date on which the Company
notifies the Executive of such termination; and
3.5.3 if the Executive's employment is terminated by reason of
death or Disability, the date of death of the Executive or the Disability
Effective Date, as the case may be.
3.6 Resignation as Director. If the Executive's employment under
this Agreement is terminated for any reason, the Executive shall resign as a
director of the Company and as a director, member and/or manager of all
affiliates of the Company of which Executive is a director, member and/or
manager. Such resignation will be effective (i) in the case of a termination by
the Executive pursuant to Section 1, "Employment Agreement" or Section 3,
"Termination of Employment," on the date the Executive delivers the relevant
Notice of Termination in accordance with such Sections; (ii) in the case of a
termination by the Company, on the date Executive receives the relevant Notice
of Termination; and (iii) in the case of a termination for any other reason, no
later than the relevant Termination Date.
4. OBLIGATIONS OF THE COMPANY UPON TERMINATION.
4.1 Termination for Good Reason, Other Than for Cause, Death or
Disability. If, during the Employment Period, the Company shall terminate the
Executive's employment other than for Cause, Death or Disability, including the
Company's election not to renew this Agreement under Section 1, "Employment
Period," or the Executive shall terminate employment for Good Reason, the
Company shall pay to the Executive within thirty (30) days after the Date of
Termination the aggregate of the following amounts in a lump sum in cash, except
for the amounts due under Section 4.1.1 below:
4.1.1 the amount of Annual Base Salary compensation that would
have been payable to the Executive over the period then remaining under this
Agreement, as it may have been renewed as provided for in Section 1, "Employment
Period," plus the amount of the then current Annual Base Salary that would be
payable to the Executive over a six-month period, but not more than a total of
eighteen (18) months of compensation, provided that the Company will pay such
amount to the Executive over the period that the compensation would have been
due had the termination not occurred;
4.1.2 any declared and accrued, but as of then unpaid, bonus
or stock options grant (whether or not vested) to which the Execute would have
received but for such termination. Additionally, any stock options owned or
granted shall be deemed immediately
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vested, not forfeitable, and shall be the property of Executive, exercisable
according to their terms for the balance of the term of years of the options;
4.1.3 any accrued vacation pay;
4.1.4 any amounts payable pursuant to the Company's Defined
Benefit Pension Plan, 401(k) plan, including such amounts which would have
accrued (whether or not vested) if the Executive's employment had continued
after the Date of Termination for the period then remaining under this
Agreement, as it may have been renewed as provided for in Section 1, "Employment
Period";
4.1.5 any other amounts or benefits required to be paid or
provided or which the Executive is eligible to receive under any plan, program,
policy or practice or contract or agreement of the Company (such other amounts
and benefits shall be referred to as the "Other Benefits");
4.1.6 for the remaining term of this Agreement, as it may have
been renewed pursuant to Section 1, "Employment Period," or such longer period
as may be provided by the terms of the appropriate plan, program, practice or
policy, the Company shall continue benefits to the Executive and/or the
Executive's family at least equal to those which would have been provided to
them in accordance with the plans, programs, practices and policies described in
Section 2.2.5, "Welfare Benefit Plans," of this Agreement if the Executive's
employment had not been terminated or, if more favorable to the Executive, as in
effect generally at any time thereafter with respect to other executives of the
Company and their families, provided, however, that if the Executive becomes
re-employed with another employer and is eligible to receive medical or other
welfare benefits under another employer-provided plan, the medical and other
welfare benefits described herein shall be secondary to those provided under
such other plan during such applicable period of eligibility, and for purposes
of determining eligibility (but not the time of commencement of benefits) of the
Executive for retiree benefits pursuant to such plans, practices, programs and
policies, the Executive shall be considered to have remained employed for the
remaining term of this Agreement, as it may have been renewed pursuant to
Section 1, "Employment Period," and to have retired on the last day of such
period; and
4.1.7 the Company shall, at its sole expense as incurred,
provide the Executive with out-placement services, the scope and provider of
which shall be selected by the Executive in the Executive's sole discretion,
provided that the total cost of such services shall not exceed $10,000.
4.2 Death. If the Executive's employment is terminated by reason of
the Executive's death during the Employment Period, this Agreement shall
terminate without further obligations to the Executive's legal representatives
under this Agreement, other than for (i) payment of any death benefit
compensation under other contracts; (ii) payment of the amounts due under the
term life insurance policy described in Section 2.2.4, "Incentive Savings and
Retirement Plans"; (iii) full vesting and non-forfeiture of stock options
granted to Executive; and (iv) the timely payment or provision of Other
Benefits. Such amounts shall be paid to the Executive's estate or beneficiary,
as applicable, in a lump sum in cash within thirty (30) days of the Date of
Termination. The term "Other Benefits" as utilized in this Section 4.2 shall
include,
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without limitation, and the Executive's estate and/or beneficiaries shall be
entitled to receive, benefits at least equal to the most favorable benefits
provided by the Company to the estates and beneficiaries of other executives of
the Company under such plans, programs, practices and policies relating to death
benefits, if any, as in effect with respect to other executives and their
beneficiaries at any time during the one hundred twenty (120) day period
immediately preceding the Effective Date or, if more favorable to the
Executive's estate and/or the Executive's beneficiaries, as in effect on the
date of the Executive's death with respect to other executives of the Company
and their beneficiaries.
4.3 Disability. If the Executive's employment is terminated by
reason of the Executive's Disability under Section 3.1, "Death or Disability,"
during the Employment Period, this Agreement shall terminate without further
obligations to the Company, other than for the timely payment or provision of
(i) Base Salary; (ii) accrued bonus through the Termination Date; (iii) payment
of pension, 401(k), and Other Disability Benefits; (iv) full vesting and
non-forfeiture of stock options; and (v) the receipt of fully-paid Welfare
Benefit Plans under Section 2.2.5, "Welfare Benefit Plans," for the balance of
the term of this Agreement. In addition, Executive shall be paid for the term of
this Agreement at regular pay periods that amount equal to the difference
between his Annual Base Salary and the disability insurance payment received by
the disabled Executive under the Company's disability insurance program. The
term "Other Benefits" as utilized in this Section 4.3 shall include, and the
Executive shall be entitled after the Disability Effective Date to receive,
disability and other benefits at least equal to the most favorable of those
generally provided by the Company to disabled executives and/or their families
in accordance with such plans, programs, practices and policies relating to
disability, if any, as in effect generally with respect to other executives and
their families at any time during the one hundred twenty (120) day period
immediately preceding the Effective Date or, if more favorable to the Executive
and/or the Executive's family, as in effect at any time thereafter generally
with respect to other executives of the Company and their families.
4.4 Termination by the Company for Cause; and Termination by the
Executive for Other than for Good Reason. If the Executive's employment shall be
terminated for Cause during the Employment Period, this Agreement shall
terminate without further obligations to the Company other than the obligation
to pay to the Executive: (i) the Annual Base Salary through the Date of
Termination; (ii) the amount of any compensation previously deferred by the
Executive; and (iii) Other Benefits under Sections 4.2, "Death," and Section
4.3, "Disability," in each case to the extent therefore unpaid. If the Executive
voluntarily terminates employment during the Employment Period, excluding a
termination for Good Reason by the Executive, this Agreement shall terminate
without further obligations to the Company, other than for items (i), (ii) and
(iii) of this paragraph, accrued but unpaid vacation leave, and the timely
payment or provision of Other Benefits. In such case, all accrued obligations
shall be paid to the Executive in a lump sum in cash within thirty (30) days of
the Date of Termination.
4.5 Life Insurance and Health Plan Coverage. If, during the term of
this Agreement, the Executive's employment terminates for any reason other than
for Cause, the Company shall provide the Executive coverage for a continuation
period beginning on the Effective Date and ending on the earlier of (i) balance
of the Employment Period plus six months, but not more than a total of eighteen
(18) months; or (ii) the date of the Executive's death. During the Continuation
Period, the Executive (and, where applicable, the Executive's
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dependents) shall be entitled to continue participation in the group term life
insurance plan and in the health care plan for employees maintained by the
Company as if the Employee were still an employee of the Company. The coverage
provided under this Section 4.5. shall run concurrently with and shall be offset
against any continuation coverage under Part 6 of Title I of the Employee
Retirement Income Security Act of 1974, as amended. Where applicable, the
Executive's compensation for purposes of such plans shall be deemed to be equal
to the Executive's compensation (as defined in such plans) in effect on the date
of the employment termination. To the extent that the Company finds it
undesirable to cover the Executive under the group life insurance and health
plans of the Company, the Company shall provide the Executive (at its own
expense) with the same level of coverage under individual policies.
5. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent or
limit the Executive's continuing or future participation in any plan, program,
policy or practice provided by the Company and for which the Executive may
qualify, nor, subject to Section 4, "Obligations of the Company Upon
Termination," shall anything herein limit or otherwise affect such rights as the
Executive may have under any other contract or agreement with the Company.
Amounts which are vested benefits or which the Executive is otherwise entitled
to receive under any plan, policy, practice or program of or any contract or
agreement with the Company at or subsequent to the Date of Termination shall be
payable in accordance with such plan, policy, practice or program or contract or
agreement except as explicitly modified by this Agreement. Executive is
currently a party to, and in the future may be a party to other, employment
arrangements, agreements, and incentive plans, including but not limited to, a
death benefit plan, stock option agreements, and a change of control agreement.
This Agreement shall not supersede any of the terms or conditions of such other
agreements. To the extent of any inconsistency in these agreements, the
agreements shall be interpreted and applied in the way to confer upon the
Executive the greatest benefits. The agreements shall be read and applied
consistent with each other, but in the event of a conflict, the terms most
favorable to the Executive will be applied from the various provisions of the
agreements in the aggregate.
6. FULL SETTLEMENT; LEGAL FEES. The Company's obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall be subject to any set-off, counterclaim, recoupment, defense or
other claim, right or action that the Company may have against the Executive. In
no event shall the Executive be obligated to seek other employment or take any
other action by way of mitigation of the amounts payable to the Executive under
any of the provisions of this Agreement and except as specifically provided in
Section 4.1.6, such amounts shall not be reduced whether or not the Executive
obtains other employment. Provided that the Executive is the prevailing party,
the Company will reimburse the Executive to the full extent permitted by law,
all legal fees and expenses that the Executive may reasonably incur as a result
of any contest by the Company, the Executive or others of the validity or
enforceability of, or liability or entitlement under, any provision of this
Agreement or any guarantee of performance thereof (whether such contest is
between the Company and the Executive or between either of them and any third
party, and including as a result of any contest by the Executive about the
amount of any payment pursuant to this Agreement), plus in each case interest on
any delayed payment at the applicable Federal rate ("Applicable Federal Rate")
provided for in Section 7872(f)(2)(A) of the Internal Revenue Code of 1986, as
amended (the "Code").
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7. CONFIDENTIAL INFORMATION; NONCOMPETITION.
7.1 Nondisclosure. The Executive shall hold in fiduciary capacity
for the benefit of the Company all secret, proprietary or Confidential
Information, knowledge or data relating to the Company and its businesses, which
shall have been obtained by the Executive during the Executive's employment by
the Company. During the period the Executive is employed with the Company, and
after termination of the Executive's employment with the Company, the Executive
shall not, without the prior written consent of the Company or as may otherwise
be required by law or legal process, communicate or divulge any such
information, knowledge or data to anyone other than the Company and those
designated by it. The restrictions set forth in this Section 7 will not apply to
information which is generally known to the public or in the trade, unless such
knowledge results from an unauthorized disclosure by the Executive or
representatives of the Executive in violation of this Agreement. This exception
will not affect the application of any other provisions of this Agreement to
such information in accordance with the terms of such provision. All documents
and tangible things embodying or containing confidential information are the
Company's exclusive property. The Executive will protect the confidentiality of
their content and will return all copies, facsimiles and specimens of them and
any other form of confidential information in the Executive's possession,
custody or control to the Company before leaving the employment with the
Company.
7.2 Definition of Confidential Information. The term "Confidential
Information" includes all information of any nature and in any form which at the
time or times concerned is not generally known to the public, other than by act
or acts of an employee not authorized by Company to disclose such information,
and which relates to any one or more of the aspects of the present and past
business of Company or any of its predecessors, including, but not limited to,
patents and patent applications, inventions and improvements, whether patentable
or not, development projects, policies, processes, formulas, techniques,
know-how and other facts relating to sales, advertising, franchising,
promotions, financial matters, customers, customer lists, customer purchases or
requirements, licenses or trade secrets.
7.3 Competition. During the term of the Executive's employment with
the Company, and for the period during which he receives compensation from the
Company under Section 4.1.1 after the termination of his employment with the
Company, the Executive will not, directly or indirectly, engage, participate or
invest in or be employed by any business anywhere in the world which:
7.3.1 develops or manufactures products that are competitive
with or similar to products developed or manufactured by the Company; or
7.3.2 distributes, markets or otherwise sells products
manufactured by others which are competitive with or similar to products
distributed, marketed or sold by the Company; or provides services which are
competitive with or similar to services provided by the Company, including, in
each case, any products or services the Company has under development or which
are the subject of active planning at any time during the term of the
Executive's employment.
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The foregoing restriction shall apply regardless of the capacity in
which the Executive engages or engaged, participates or participated, or invests
or invested in or is employed by a given business, whether as owner, partner,
shareholder, consultant, agent, Executive, co-venturer or otherwise. In
addition, during the term of the Executive's employment with the Company, and
for a period of twelve (12) months thereafter, the Executive will not, directly
or indirectly, without the prior written consent of the Company, hire or solicit
for hire with any business any person who is employed by the Company at such
time or was employed by the Company within the preceding twelve (12) months. The
provisions of this Section 7 shall not prevent the Executive from acquiring or
holding publicly traded stock or other publicly traded securities of a business,
so long as the Executive's ownership does not exceed ten percent (10%) of the
outstanding securities of such company of the same class as those held by the
Executive or from engaging in any activity or having an ownership interest in
any business that is reviewed by the Board. The Executive understands that the
restrictions set out in this Section 8 are intended to protect the Company's
interest in its secret, proprietary or confidential information and established
customer relationships and goodwill, and agrees that such restrictions are
reasonable and appropriate for this purpose.
7.4 Damages. The Executive agrees that it would be difficult to
measure any damages caused to the Company which might result from any breach by
the Executive of the promises set forth in this Agreement, and that in any event
money damages would be an inadequate remedy for any such breach. Accordingly,
the Executive agrees that in the case of breach, or proposed breach, of any
portion of this Agreement, the Company shall be entitled, in addition to all
other remedies that it may have, to an injunction or other appropriate equitable
relief to restrain any such breach without showing or proving any actual damage
to the Company.
8. DISPUTE RESOLUTION. If there shall be any dispute between the Company
and the Executive (i) in the event of any termination of the Executive's
employment by the Company, provided such termination was not for Cause, or (ii)
otherwise arising out of this Agreement, the dispute will be resolved in
accordance with the dispute resolution procedures set forth in Exhibit A
attached to this Agreement, the provisions of which are incorporated as a part
of this Agreement, and the parties of this Agreement agree that such dispute
resolution procedures will be the exclusive method for resolution of disputes
under this Agreement; provided, however, that (a) either party may seek
preliminary judicial relief if, in such party's judgment, such action is
necessary to avoid irreparable injury during the pendency of such procedures,
and (b) nothing in Exhibit A will prevent either party from exercising the
rights of termination set forth in this Agreement. IT IS EXPRESSLY UNDERSTOOD
THAT BY SIGNING THIS AGREEMENT, WHICH INCORPORATES BINDING ARBITRATION, THE
COMPANY AND EXECUTIVE AGREE, EXCEPT AS SPECIFICALLY PROVIDED OTHERWISE IN
SECTION 7, "CONFIDENTIAL INFORMATION; NONCOMPETITION," AND THIS SECTION 8, TO
WAIVE COURT OR JURY TRIAL AND TO WAIVE PUNITIVE, STATUTORY, CONSEQUENTIAL, AND
ANY DAMAGES, OTHER THAN COMPENSATORY DAMAGES.
9. SUCCESSORS.
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9.1 This Agreement is personal to the Executive and without the
prior written consent of the Company shall not be assigned by the Executive
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by the Executive's legal
representatives.
9.2 This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
9.3 The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. As used in this Agreement, the term "Company" shall mean the
Company as defined above and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
10. MISCELLANEOUS.
10.1 This Agreement shall be governed by and construed in accordance
with the laws of the State of Arizona, without reference to principles of
conflict of laws. The captions of this Agreement are set forth for convenience
only and shall have no separate force or effect. This Agreement may not be
amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.
10.2 All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive:
Xxxxxxx X. Xxxxxxx, Ph.X.
Xxxx, Inc.
0000 X. 0xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
If to the Company:
Zila, Inc.
ATTN: Corporate Secretary
0000 X. 0xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
10.3 The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
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10.4 The Company may withhold from any amounts payable under this
Agreement such Federal, state, local or foreign taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
10.5 The failure of the Executive or the Company to insist upon
strict compliance with any provision hereof or any other provision of this
Agreement or the failure to assert any right the Executive or the Company may
have hereunder, including, without limitation, shall not be deemed to be a
waiver of such provision or right or any other provision or right of this
Agreement, except that if the Executive chooses to terminate employment for Good
Reason pursuant to Section 3.3, "Good Reason," and complies with the provisions
of Section 3, "Termination of Employment," the Executive shall only be entitled
to compensation and benefits applicable to such event of termination.
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IN WITNESS WHEREOF, pursuant to the authorization from its Compensation
Committee and Board of Directors, the Company has caused this Agreement to be
executed in its name on its behalf, as of the day and year first above written.
COMPANY:
ZILA, INC.
By
----------------------------------------
Title
-------------------------------------
EXECUTIVE:
------------------------------------------
Xxxxxxx X. Xxxxxxx, Ph.D.
EXHIBIT A
DISPUTE RESOLUTION PROCEDURES
1. If a controversy arises that is covered by Section 8, "Dispute
Resolution," of the Agreement, then not later than twelve (12) months from the
date of the event that is the subject of dispute either party may serve on the
other a written notice specifying the existence of such controversy and setting
forth in reasonably specific detail the grounds of the notice ("Notice of
Controversy"); provided that, in any event, the other party will have at least
thirty (30) days from and after the date of the Notice of Controversy to serve a
written notice of any counterclaim ("Notice of Counterclaim"). The Notice of
Counterclaim will specify the claim or claims in reasonably specific detail. If
the Notice of Controversy or the Notice of Counterclaim, as the case may be, is
not served within the applicable period, the claim set forth therein will be
deemed to have been waived, abandoned and rendered unenforceable.
2. For a three (3) week period following receipt of the Notice of
Controversy or the Notice of Counterclaim, as the case may be, the parties will
make a good faith effort to resolve the dispute through negotiation ("Period of
Negotiation"). Neither party will take any action during the Period of
Negotiation to initiate arbitration proceedings.
3. If the parties agree during the Period of Negotiation to mediate the
dispute, then the Period of Negotiation will be extended by an amount of time to
be agreed upon by the parties to permit such mediation. In no event, however,
may the Period of Negotiation be extended by more than five weeks or, stated
differently, in no event may the Period of Negotiation be extended to encompass
more than a total of eight weeks.
4. If the parties agree to mediate the dispute but are thereafter unable
to agree within a week on the format and procedures for the mediation, then the
effort to mediate will cease, and the period of Negotiation will terminate four
weeks from the Notice of Controversy or the Notice of Counterclaim, as the case
may be.
5. Following the termination of the Period of Negotiation, the dispute,
including the main claim and counterclaim, if any, will be settled by
arbitration, governed by the Federal Arbitration Act, 9 U.S.C. ss.1 et seq.
("FAA"), and judgment upon the award may be entered in any court having
jurisdiction. The format and procedures of the arbitration are set forth below
(referred to below as the "Arbitration Agreement").
6. A notice of intention to arbitrate ("Notice of Arbitration") will be
served within forty-five (45) days of the termination of the Period of
Negotiation. If the Notice of Arbitration is not served within this period, the
claim set forth in the Notice of Controversy or the Notice of Counterclaim, as
the case may be, will be deemed to have been waived, abandoned and rendered
unenforceable.
7. The arbitration, including the Notice of Arbitration, will be governed
by the Commercial Rules of the American Arbitration Association ("AAA") in
effect on the date of the Notice of Arbitration, except that the terms of this
Arbitration Agreement will control in the
event of any difference or conflict between such Rules and the terms of this
Arbitration Agreement.
8. The arbitrator will reach a decision on the merits on the basis of
applicable legal principles as embodied in the law of the State of Arizona. The
arbitration hearing will take place in Phoenix, Arizona.
9. There will be one arbitrator, regardless of the amount in controversy.
The arbitrator selected, in order to be eligible to serve, will be a lawyer in
Phoenix, Arizona with at least fifteen (15) years experience specializing in
either general commercial litigation or general corporate and commercial
matters. In the event the parties cannot agree on a mutually acceptable single
arbitrator from the list submitted by the AAA, the AAA will appoint the
arbitrator who will meet the foregoing criteria.
10. At the time of appointment and as a condition of the appointment, the
arbitrator will be apprised of the time limitations and other provisions of this
Arbitration Agreement and will indicate such dispute resolver's agreement to the
Tribunal Administrator to comply with such provisions and time limitations.
11. During the thirty (30) day period following appointment of the
arbitrator, either party may serve on the other a request for limited numbers of
documents directly related to the dispute. Such documents will be produced
within seven (7) days of the request.
12. Following the thirty-day period of document production, there will be
a forty-five (45) day period during which limited depositions will be
permissible. Neither party will take more than five (5) depositions, and no
deposition will exceed three (3) hours of direct testimony.
13. Disputes as to discovery or prehearing matters of a procedural nature
will be promptly submitted to the arbitrator pursuant to telephone conference
call or otherwise. The arbitrator will make every effort to render a ruling on
such interim matters at the time of the hearing (or conference call) or within
five (5) business days thereafter.
14. Following the period of depositions, the arbitration hearing will
promptly commence. The arbitrator will make every effort to commence the hearing
within thirty (30) days of the conclusion of the deposition period and, in
addition, will make every effort to conduct the hearing on consecutive business
days to conclusion.
15. An award will be rendered, at the latest, within nine (9) months of
the date of the Notice of Arbitration and within thirty (30) days of the close
of the arbitration hearing. The award will set forth the grounds for the
decision (findings of fact and conclusions of law) in reasonably specific
detail. The award will be final and nonappealable except as provided in the FAA
and except that a court of competent jurisdiction will have the power to review
whether, as a matter of law, based upon the findings of fact by the arbitrator,
the award should be confirmed or should be modified or vacated in order to
correct any errors of law made by the arbitrator. Such judicial review will be
limited to issues of law, and the parties agree that the findings of fact made
by the arbitrator will be final and binding on the parties and will serve as the
facts to
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be relied upon by the court in determining the extent to which the award should
be confirmed, modified or vacated.
The award may only be made for compensatory damages, and if any other
damages (whether exemplary, punitive, consequential, statutory or other) are
included, the award will be vacated and remanded, or modified or corrected, as
appropriate to promote this damage limitation.
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